NS (Iran) v SSHD

The absence of a Home Office presenting officer does not require an asylum tribunal to adopt an inquisitorial role or cross-examine the claimant. The tribunal may make adverse credibility findings where the concerns were apparent and the claimant had a fair opportunity to address them. An appellate court will generally not entertain points which could have been raised before the tribunal. Where the account advanced is comprehensively disbelieved, any duty to consider an alternative case arises only where some, probably substantial, material supports it. Evidence such as photographs remains a matter for the tribunal as fact-finder unless an arguable legal error is shown.

The appellant, an Iranian Kurdish national, claimed asylum on the basis of feared persecution by the Iranian authorities and the PKK. His account of involvement with the PKK and PJAK changed materially, and the Asylum and Immigration Tribunal rejected the account and all aspects of the claim.

Following an earlier favourable asylum decision, the matter was referred for reconsideration by Collins J. The appellant sought permission to appeal, arguing that the tribunal had breached the Surendran guidelines by making adverse credibility findings without questioning him, particularly because the Home Office was unrepresented. The central issues were the tribunal’s inquisitorial responsibilities, the treatment of photographs and interview evidence, and whether an alternative case required consideration.

1. Application refused. The appellant had received a fair hearing, and there was no arguable basis for reversing the tribunal’s decision.
2. The Surendran guidelines, issued with MNM v SSHD [2000] INLR 576, did not require the tribunal to enter the arena or cross-examine the appellant merely because the Home Office presenting officer was absent. The guidelines appropriately recognised that a judge should draw matters apparent from the papers to the representative’s attention and invite submissions or evidence where appropriate. Here, the credibility concerns were obvious and had been highlighted in the earlier proceedings.
3. The tribunal was entitled to reject the photographic evidence. Even if the appellant could be identified, the photographs did not establish that the persons shown belonged to the PKK or had participated in battles. Further evidence could have been called below to establish authenticity and materiality.
4. The tribunal was the fact-finder. Questions concerning the organisation, weapons and the Kalashnikov were matters for the tribunal, and the appellant could not generally raise on appeal points which could have been, but were not, taken before it.
5. The court agreed with the view expressed by Sir Richard Buxton that, after comprehensive rejection of the case actually advanced, any obligation to consider an alternative case arose only where some, probably substantial, material suggested that alternative case. No such material existed. The tribunal’s findings did not depend on statutory assumptions under section 8.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 914, the application for permission to appeal was refused.
2. Asylum and Immigration Tribunal: On reconsideration following referral by Collins J, the tribunal rejected the appellant’s account of PKK and PJAK involvement and dismissed all aspects of his asylum claim.